United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit December 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-61090
BAYOU FLEET, INC.; LOUISIANA WORKERS’ COMPENSATION CORPORATION
Petitioners
VERSUS
DONALD DURANT; DIRECTOR, OFFICE OF WORKER’S COMPENSATION
PROGRAMS, US DEPARTMENT OF LABOR,
Respondents
PETITION FOR REVIEW FROM AN ADMINISTRATIVE DECISION OF THE
BENEFITS REVIEW BOARD
BRB NO.: 04-0154
Before REAVLEY, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Petitioners seek our review of a final Benefits Review Board
(“BRB”) Order affirming the Administrative Law Judge’s (“ALJ”)
determination that claimant, Donald Durant, is entitled to benefits
under the Longshore Harbor Worker’s Compensation Act (“LHWCA”).
After two reversals and two remands by the BRB to the ALJ, the BRB
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
found that the claimant was entitled to a presumption that the
claim fell within the provisions of the LHWCA and that the employer
failed to rebut that presumption. Even if the claimant properly
invoked the presumption that his injury was causally related to his
employment, we find that the ALJ’s conclusion that the employer
rebutted the presumption is supported by substantial evidence and
that the BRB erred in reversing the ALJ’s order and decision.
I. Facts and Procedural Background
Donald Durant (“claimant”) had a longstanding history of back
problems. In 1974, he suffered a low back compression fracture in
an automobile accident. At the time of the accident, claimant was
working as a commercial diver for various oil companies, but after
the accident, he could not obtain work from the companies because
he could not pass the physical examinations.
In 1985, claimant developed the “bends” while working as a
diver and began to experience a significant right-sided low back
pain. After those episodes, claimant experienced back pain
following physical activity; however, until 1998, he seldom sought
medical treatment because he found rum and rest to be the most
helpful in relieving his pain.
In the past, claimant worked as a marine diver and performed
mechanical repairs and welding on ships. In July 1997, Robin
Durant, claimant’s cousin and president of Bayou Fleet, offered
Donald a position at Bayou Fleet (“employer”). Both Donald and
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Robin testified that one of the reasons Robin hired Donald was to
have him enrolled in Bayou Fleet’s health plan so claimant could
get medical treatment for his chronic back pain. According to
claimant, a number of incidents occurred at Bayou Fleet that
aggravated his back, but he would rest, go back to work, and never
report the events. Specifically, claimant testified that the
episodes involved such things as moving pipe, pulling chain,
fabricating a pully block and tackle and setting up the crane on a
barge, mostly without assistance. Finally, claimant testified that
on August 16, 1999, while he was using a come-along to rig a
clamshell bucket on a crane, something pulled in his back.
Claimant testified that as soon as the accident happened, he
reported it to Paul Deister, the general manager of Bayou Fleet.
He also testified that Paul Deister called Robin Durant, who came
to the office and fired him. Paul Deister, on the other hand,
testified that claimant never reported the accident to him that
day.
While working for Bayou Fleet, claimant often complained of
back problems, but always told his cousin that it was unrelated to
the work he was doing for Bayou Fleet.1 However, following his
termination on August 16, 1999, claimant filed five claims alleging
work-related accidents he had suffered during the course of his
1
He also absolutely denied his condition had anything to do with
his work at Bayou Fleet to Ken Toups, the comptroller at Bayou
Fleet.
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employment with Bayou Fleet.
Claimant filed a claim against Bayou Fleet for benefits under
the LHWCA, which proceeded before an ALJ. The ALJ initially denied
claimant LHWCA benefits because he found that claimant could not
meet his burden of showing a prima facie case of “injury,” i.e.,
that he suffered a harm and that conditions existed at work which
could have caused, aggravated, or accelerated the harm. Therefore,
the ALJ found that claimant did not invoke the § 20(a) presumption.
The BRB reversed and remanded, finding that claimant did invoke the
presumption and established a prima facie case. On remand, the ALJ
found that even though the presumption was invoked and a prima
facie case was established, the employer rebutted the presumption
with substantial evidence to the contrary. Again, the BRB reversed
and remanded finding that the employer did not present substantial
evidence that claimant’s back condition was not aggravated or
accelerated by the working conditions. The ALJ then rendered
judgment in favor of claimant and determined the amount of his
benefits. This appeal followed.
II. Analysis
We review the decisions of the BRB for errors of law and to
determine whether it “correctly concluded that the Administrative
Law Judge’s order was supported by substantial evidence on the
record as a whole and is in accordance with law.” Ingalls
Shipbuilding, Inc. v. Director, Office of Workers’ Compensation
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Programs, 991 F.2d 163, 165 (5th Cir.1993) (quoting Avondale Indus.
v. Director, Office of Workers’ Compensation Programs, 977 F.2d
186, 189 (5th Cir.1992)).
Petitioners contend that the BRB erred in reversing the ALJ
and finding that the § 20(a) presumption was invoked and also erred
in finding that the employer did not rebut the presumption. Even
if the BRB correctly concluded that the presumption was invoked, we
find that the conclusion of the ALJ that the employer rebutted the
presumption is supported by substantial evidence and the BRB erred
in refusing to accept this finding. The following evidence
supports the ALJ’s conclusion.
Donald Durant had a long history of back problems. He never
reported any work-related accidents until approximately two weeks
after being terminated from Bayou Fleet. During his employment, he
saw a number of doctors, some of whom he told that his work at
Bayou Fleet had not worsened his back condition. At least one of
these physicians examined him before and after the alleged August
16 accident and found no evidence that his back condition was worse
after August 16. He also told his cousin, an official at Bayou
Fleet, and another representative of the company that his injuries
were not work related. Finally, the claimant testified on cross-
examination that his back condition was essentially the same post-
employment as pre-employment.
III. Conclusion
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Because the ALJ’s conclusion is supported by substantial
evidence, the BRB erred in finding that Donald Durant’s condition
was work-related. We therefore reverse the BRB’s order and
reinstate the ALJ’s Order and Decision rejecting Durant’s claim on
grounds that the employer rebutted the presumption.
REVERSED.
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